Cba Ethics Committee Formal Opinion 110: Assertion of Attorney's Charging Lien and Taking Security Interest in Client Property to Protect Fees

• Publication year: 2002
• Pages: 130
• Citation: Vol. 31 No. 5 Pg. 130

31 Colo.Law. 130 Colorado Lawyer 2002.

2002, May, Pg. 130. CBA Ethics Committee Formal Opinion 110: Assertion of Attorney's Charging Lien and Taking Security Interest in Client Property to Protect Fees

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130

Vol. 31, No. 5, Pg. 130

The Colorado Lawyer
May 2002
Vol. 31, No. 5 [Page 130]

Departments
CBA Ethics Committee Formal Opinions
CBA Ethics Committee Formal Opinion 110: Assertion of Attorney's Charging Lien and Taking Security Interest in Client Property to Protect Fees

Editor's Note

The original CBA Formal Opinion 110 was published in the April 2002 issue of The Colorado Lawyer at page 27. Two corrections should be made to this opinion, as well as the official change entitled "Addendum."

The two corrections are as follows

1. On page 27, under the title "SYLLABUS," the cite CRS § 12-15-119 (2001) should be CRS § 12-5-119 (2001)

2. On page 27, second column, first full paragraph, line 8, the cite to Ross v. Scannell should be deleted in its entirety, including the parenthetical.

The following three paragraphs comprising the Addendum replace the paragraph at the bottom left and top right columns on page 28. This paragraph starts, "A charging lien" and ends with "DR5-103(A)(1)." The final paragraph before the new heading "Taking a Security . . ." remains the same.

For the final, complete Formal Opinion 110, see www.cobar.org.

An attorney's lien provides persons notice that the attorney claims an interest in the property; it is not commencement of a civil action pursuant to the charging lien statute. People v. Gray, supra; In re the Marriage of Mitchell, 2002 Colo. App. Lexis 162 (Colo.App., Feb. 14, 2002); 31 Colo.Law. 153 (April 2002). Accordingly, a charging lien for fees pertaining to services rendered in that particular matter may be enforced in that matter or in a separate lawsuit; see, Gee v. Crabtree, 192 Colo. 550, 5560 P.2d 835 (1997). The attorney asserting the lien has the burden to show that the lawyer comes within the purview of the statute; In re Mitchell.

However, mere assertion of the lien in most situations will be insufficient to give the attorney the right to record the notice of lien against real property. The lawyer must first comply with the statutory requirements. In People v. Smith supra (Colo....